Historic win under article 8 ECHR in extradition appeal

The Supreme Court has today given judgment in extradition appeals concerning the rights of children when their parents face extradition. One of these appeals, for Mrs F-K, a mother of five children, has been unanimously allowed by the Court. This is a historic win and is now one of the very few cases in which extradition has been halted on Article 8 grounds. These appeals together clarify how the courts are to approach Article 8 and UNCRC issues in the extradition context, and make clear that the courts approach to extradition cases should not be "radically different" to expulsion cases.

F-K and her husband are Polish and have lived in the UK since 2002. They have five children, and the two youngest (aged 3 and 8) were born here. F-K is charged with offences of dishonesty with a total value of under £6,000. She fled Poland in 2002 and has not been tried or convicted of the alleged offences yet.

The Court held that F-K's extradition would have a severe impact on her two youngest children. They would lose their primary carer and this could have a lasting impact on their development. Their father is unlikely to be able to fill that gap. The public interest in extraditing her does not justify the inevitable harm it would cause to the lives of her children. In examining the weight to be given to the public interest the Court noted that the alleged offences are not trivial but are "of no great gravity"; there is no prosecutorial discretion in Poland; and there has been considerable delay by the Polish authorities. As a result of today's decision, F-K will not be separated from her family.

HH & PH v Deputy Prosecutor of the Italian Republic, Genoa, the Official Solicitorintervening
HH is represented by John Jones (led by Alun Jones QC), PH by Steven Powles (led by Matthew Ryder QC), and the three children X, Y, and Z, through the Official Solicitor their litigation friend, by Caoilfhionn Gallagher (led by Hugo Keith QC).

PH (father) and HH (mother) are British citizens, with three children now aged 3, 8 and 11. PH has become the children's primary carer as HH's mental health has deteriorated. Italy sought both parents' extradition to serve sentences for serious drugs offences, although PH's sentence is lesser as he played a more minor role in the conspiracy. HH has 9? years to serve, and PH has 8 years of his sentence remaining, of which he will only serve 4? years. As the children's primary carer, were the family living in Italy PH would be allowed to serve all but a few months of this at home.

The Court unanimously dismissed HH's appeal, focusing upon both the limited role she plays in the children's lives and the central part she played in the serious offences committed. The Court held that that public interest in her extradition outweighed any interference with the rights of the children.

However PH's case was more difficult. Lady Hale (dissenting) held that the current effect on the children, particularly the youngest, could not justify extradition of their father at this time. However although Lord Hope and Lord Brown described his case as extremely difficult and troubling, they agreed with the remaining Justices that the public interest in PH's extradition outweighed the Article 8 interference. Detailed reasons for this are provided by Lord Judge in particular but the central issue for the majority is the serious nature of his offending. The Court also took account of evidence suggesting that PH could be promptly returned to serve his sentence in the UK, given the new European legal framework (Council Framework Decision 2008/909/JHA: Lord Mance at para 105).

Future Cases

These appeals are very significant as they clarify how the Supreme Court's earlier decisions in Norris v USA (No. 2) [2010] UKSC 9 and ZH (Tanzania) v SSHD [2011] UKSC 4 should be interpreted in extradition cases. The majority rejected the notion that extradition cases are of entirely different to expulsion or deportation cases. In all cases, there must be a careful analysis under Article 8 of the potential effects of extradition.

Lady Hale, in the lead judgment, gave guidance on the procedure in respect of gathering evidence where the primary or sole carer of a child is facing extradition (paragraphs 82 - 86). She adopted the Official Solicitor's suggestion that the courts may in some cases be advised to make a referral of the affected child to the local children's services department, under section 17, Children Act 1989, to obtain an assessment and care plan.

The F-K case is also particularly important as it makes clear that delay is now a factor to be considered under Article 8.

To view the judgments in these two cases, and a related Scottish extradition appeal please click here.

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